Affirmed and Memorandum Opinion filed July 17, 2014.

In The

Fourteenth Court of Appeals

NO. 14-12-00894-CR

XAVIER ALEXANDER AUSTIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1252434

M E M O R A N D U M O P I N I O N

A jury convicted appellant, Xavier Alexander Austin, of capital murder. 

The trial court sentenced appellant to life in prison without the possibility of 

parole. Appellant raises five issues on appeal. We affirm.

BACKGROUND

On the morning of June 3, 2009, a robbery at a convenience store resulted in 

the shooting deaths of two store clerks. Police were subsequently tipped off to a 
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possible suspect, Minh Truong. Truong gave police the names of Casey Carmon, 

Herbert Nash, and someone nicknamed “Fui.” Police investigation ultimately 

suggested appellant was the individual known as “Fui.” Appellant was located and 

voluntarily gave a statement to police. Appellant identified Truong, Carmon and 

Nash in photo arrays. 

According to his statement, appellant drove all three in a white Crown 

Victoria provided by Nash to the convenience store and parked the car out of view

of the store. Nash stayed in the car; Truong and Carmon went into the store, and 

then ran out. Carmon was saying “I shot ‘em,” and appellant saw he had a little 

gun. Appellant stated he did not see the gun before and no one else had a gun. 

Appellant admitted he knew they were going to rob the store but said he did not 

know they were going to shoot anyone. Appellant did not know whether the clerks 

were dead or alive when they left. Appellant denied that he and Nash sent the 

“kids” in to rob the store. 

Truong testified for the State. According to Truong, Nash was the one who 

planned the crime and acquired the gun. Appellant was the driver and chose 

Carmon, who Truong knew only as “Youngster,” to be the gunman. Truong’s role 

was to get the money and Carmon’s was to hold the gun. Truong testified the car 

pulled in on the back side of the store to avoid being seen. Appellant was driving, 

Nash was in the front passenger seat, and Carmon was in the back seat behind 

appellant when Nash took the gun out of the glove compartment, removed the 

white cloth around it, and handed it to Carmon. Carmon cocked the gun and 

asked, “how we going to do this?” Carmon was told “What you do is you go in, 

you hold the people down, and what I do, I go in there, grab the money.” 

Truong testified that when they entered the store, Carmon pointed the gun at 

the head of the clerk at the register, and the clerk went for the gun. They wrestled 
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for it, Carmon fired a few shots, and the clerk fell to the ground. Truong did not 

grab the money, but took off running to the door. He saw the other clerk and 

thought he was reaching for a gun. Truong screamed at Carmon “that dude’s got a 

gun,” and Carmon fired shots at the second clerk. They both ran out to the car and 

appellant drove everyone away from the scene “[a]s fast as he could.” According 

to Truong, the arrangement was to split the money four ways. They drove back to 

appellant’s house. Truong testified Nash and appellant were disappointed because 

Truong was supposed to get the money regardless of whether anyone was shot. 

Appellant was charged with capital murder based on the law of parties and 

Truong was identified as an accomplice as a matter of law. The jury found 

appellant guilty.

ANALYSIS

In his first issue, appellant claims his substantive rights were violated when 

the State was allowed to repeatedly bolster the credibility of its accomplice 

witness, Truong, with inadmissible testimony. Appellant’s second issue argues the 

trial court erred in denying his objection to the prosecution’s bolstering of Truong.

Appellant refers the court to only one objection to bolstering. The record 

reflects the objection was made after the question was answered by Truong. A

defendant must make a timely objection to preserve error. See Tex. R. App. P. 

33.1(a); Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). “If a 

party fails to object until after an objectionable question has been asked and 

answered, and the party does not show a legitimate reason justifying the delay, the 

objection is untimely and any error is waived.” Wright v. State, 374 S.W.3d 564, 

582 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). Because appellant’s 

objection was untimely, it was insufficient to preserve error. See Nino v. State, 223 

S.W.3d 749, 755 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
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Appellant’s other complaints of bolstering refer to testimony to which no 

objection was lodged. Accordingly, nothing is presented for our review. See Tex. 

R. App. P. 33.1(a). Issues one and two are overruled.

In issue three, appellant asserts the trial court erred in overruling his 

objection to the State’s witness speculating as to appellant’s intentions. The record 

reflects the objection was made after the question was answered by the witness. 

As noted above, an untimely objection fails to preserve error. See Tex. R. App. P. 

33.1(a); Lagrone, 942 S.W.2d at618; and Wright, 374 S.W.3d at 582. Issue three 

is overruled. 

Appellant’s fourth and fifth issues claim the trial court erred in overruling 

objections made during the State’s redirect examination of Investigator Dan 

Arnold. The following exchange occurred:

Q. [the State]: Did you have to ask [Minh] Truong leading questions 

to get him to tell you what he knew about this case?

[Defense Counsel]: Objection. That’s improper, Judge. Also hearsay.

[The State]: Your Honor, if I may. It’s in response to defense 

counsel’s questioning about –

THE COURT: Overruled. Go ahead.

Q. [the State]: Did you feel it was necessary to ask [Minh] Truong 

leading questions to get him to share with you what he knew about the 

murder of these men on June 3rd?

A: Not at all, not Mr. Truong.

Q. [the State]: If you had to compare his cooperativeness with Xavier 

Austin’s cooperativeness during your interviews, who would you say 

was more cooperative?

[Defense Counsel]: Objection. Relevance, Judge. Also calls for 

speculation.

[The State]: Your Honor, if I may. He opened the door by asking 

about what [Minh] Truong told him.
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THE COURT: Overruled.

A: I would judge Mr. Truong’s cooperation far exceeded Mr. 

Austin’s.

In his fourth issue, appellant claims the trial court erred in denying his 

objection to the State’s question about whether Arnold had to ask Truong leading 

questions. Appellant asserts in issue five that the trial court erred in denying his 

objection to the State’s query as to whether Truong was more cooperative than 

appellant. Appellant’s brief argues the questions implied the jury should compare 

the cooperativeness of Truong to appellant and as such were not relevant and 

speculative.

Regardless of the propriety of the questions and their relevance to an issue in 

this case, the record does not show that any error in overruling defense counsel’s 

objections would be reversible. Appellant concedes the alleged error is nonconstitutional. We disregard non-constitutional error unless it affected a 

substantial right. Tex. R. App. P. 44.2(b). A substantial right is affected when the 

error had a substantial and injurious effect or influence in determining the jury’s 

verdict. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). 

In this case, not only Truong’s testimony but also appellant’s own statement

established appellant’s participation in the robbery: appellant said he knew Truong 

and Carmon intended to rob the store, he parked the car in a location that could not 

be seen from inside the store, and he waited there while the robbery was committed 

and then served as the getaway driver. In the context of the entire case against 

appellant, we conclude that the trial court’s error, if any, did not have a substantial 

or injurious effect on the jury’s verdict and did not affect appellant’s substantial 

rights. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Thus, any 

error does not provide a basis for reversal. See Tex. R. App. P. 44.2(b). 

Appellant’s fourth and fifth issues are overruled.
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Having overruled all of appellant’s issues, the judgment of the trial court is 

affirmed.

/s/ J. Brett Busby

Justice

Panel consists of Justices McCally, Busby, and Donovan.

Do Not Publish — Tex. R. App. P. 47.2(b).